Shri Mohanlal Khanna , Bangalore V. Income Tax Officer Ward-7(2)(2), Bangalore

ITA 2623/BANG/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0655 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 19-12-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 19-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KARUPPUSAMY
• Assessee Lawyers: K S NAGESH
• Keywords: Set aside; Capital Gains
• Section: 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI B.R BASKARAN, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO.2623/BANG/2018 ASSESSMENT YEAR : 2013-14 SHRI MOHANLAL KHANNA, NO.10, 12 TH MAIN, 14 TH CROSS, LAKKASANDRA HOSUR ROAD, BENGALURU-560 030. PAN ACMPK 0643 B VS. THE INCOME-TAX OFFICER, WARD-7(2)(2), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI K.S NAGESH, C.A RESPONDENT BY : SHRI KARUPPUSAMY, ADDL. CIT (DR) DATE OF HEARING : 19.12.2019 DATE OF PRONOUNCEMENT : .12.2019 O R D E R PER B.R BASKARAN, ACCOUNTANT MEMBER : THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 2/8/2018 PASSED BY LD CIT(A)-10, BENGALURU AND IT R ELATES TO THE ASST. YEAR 2013-14. 2. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN CONFIRMING THE DISALLOWANCE OF DEDUCTION CLAIMED B Y THE ASSESEEE U/S 54F OF THE ACT. ITA NO.2623 /BANG/2018 PAGE 2 OF 5 3. WE HEARD THE PARTIES AND PERUSED THE RECORD. FO R THE YEAR UNDER CONSIDERATION THE ASSESSEE FILED RETURN OF IN COME DECLARING A TOTAL INCOME OF RS.6,50,830/-. THE AO NOTICED THAT THE ASSESSEE HAS CLAIMED DEDUCTION U/S 54F OF THE ACT TO THE TUN E OF RS.2.47 CRORES. THE AO NOTICED THAT THE ASSESSEE, IN ORDER TO AVAIL DEDUCTION U/S 54F OF THE ACT SHOULD NOT OWN MORE TH AN ONE RESIDENTIAL HOUSE AT THE TIME OF TRANSFERRING THE O RIGINAL ASSET. HOWEVER, THE AO NOTICED THAT THE ASSESSEE HAS HELD RESIDENTIAL PROPERTIES IN SOME OTHER PLACES ALSO, THE DETAILS O F WHICH ARE MENTIONED IN 3 RD AND 4 TH PAGE OF ASST. ORDER. SINCE THE ASSESSEE HAS HELD MORE THAN ONE HOUSE, THE AO REJECTED THE C LAIM FOR DEDUCTION U/S 54F OF THE ACT. 4. IN THE APPELLATE PROCEEDINGS THE LD CIT(A) ALSO CONFIRMED THE SAME. 5. THE LD AR SUBMITTED THAT THE ASSESSEE HAD ENTERE D INTO A JOINT DEVELOPMENT AGREEMENT ON 8/2/2006 AND HENCE, AS PER THE DECISION RENDERED BY HONBLE JURISDICTIONAL KARNAT AKA HIGH COURT IN THE CASE OF T.K DAYALU, THE CAPITAL GAIN IS ASSE SSABLE IN ASST. YEAR 2006-07. THE LD AR SUBMITTED THAT THE AO HAD REOPENED THE ASST. FOR ASST. YEAR 2006-07 AND THE MATTER IS PEND ING BEFORE THE APPELLATE AUTHORITIES. 6. WE HEARD THE LD DR AND PERUSED THE RECORD. 7. WE NOTICED THAT THE ASSESSEE APPEARS TO HAVE DEC LARED CAPITAL GAIN ARISING ON ARISING ON ACCOUNT OF ENTERING INTO JOINT ITA NO.2623 /BANG/2018 PAGE 3 OF 5 DEVELOPMENT AGREEMENT IN ASST. YEAR 2013-14 AND AC CORDINGLY CLAIMED DEDUCTION U/S 54F OF THE ACT. THE LD AR SU BMITTED THAT THE AO HAS ALSO REOPENED THE ASST. OF ASST. YEAR 20 06-07 FOR ASSESSING THE CAPITAL GAIN. IF THE CAPITAL GAIN IS ASSESSED IN ASST. YEAR 2006-07, THEN THE SAME AMOUNT CANNOT BE ASSESS ED IN ASST. YEAR 2013-14. THE DEDUCTION IS CLAIMED U/S 54F OF THE ACT AGAINST CAPITAL GAINS ONLY. 8. IT IS NOT CLEAR FROM THE RECORD AS TO WHETHE R THE CAPITAL GAIN HAS BEEN ASSESSED IN ASST. YEAR 2013-14 ALSO. IT I S ALSO NOT CLEAR AS TO WHETHER THE ASSESSEE IS CONTESTING THE CAPITAL G AIN ASSESSED IN 2013-14/2006-07, AS THE DETAILS OF APPELLATE PROCEE DINGS WERE NOT BROUGHT ON RECORD. IF CAPITAL GAIN IS HELD TO BE A SSESSABLE IN ASST. YEAR 2006-07, THEN THE QUESTION OF ALLOWING DEDUCTI ON U/S 54F OF THE ACT MAY ARISE IN THAT YEAR, IN WHICH CASE, THE QUESTION OF DISALLOWING THE DEDUCTION IN AY 2013-14 SHOULD NOT ARISE. 9. AS THE FACTS RELATING TO THE ABOVE SAID ISSUE ARE NOT CLEAR, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES FRESH EXAM INATION AT THE END OF THE AO BY DULY CONSIDERING THE MATTER RELATING T O CAPITAL GAINS. ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE LD CIT(A) AND RESTORE THIS ISSUE TO THE FILE OF AO FOR EXAMINING IT AFRESH IN THE LIGHT OF DISCUSSIONS MADE (SUPRA). ITA NO.2623 /BANG/2018 PAGE 4 OF 5 10. IN THE RESULT, ALL THE APPEAL OF THE ASSESSE E IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH DECEMBER, 2019. SD/ - (PAVAN KUMAR GADALE) JUDICIAL MEMBER SD/ - (B.R BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED, THE 20 TH DECEMBER , 2019. /VMS/ COPY TO: 1. APPELLANT (S) / CROSS OBJECTOR(S) 2. RESPONDENT(S) 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR ITAT, BANGALORE ITA NO.2623 /BANG/2018 PAGE 5 OF 5 1. DATE OF DICTATION 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO SR.P.S .. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER .. 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WEBSITE.. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO .. 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DICTATION NOTE ENCLOSED DATE ON WHICH ORDER GOES FOR XEROX & ENDORSEMENT 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 11. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER . 12. THE DATE ON WHICH THE FILE GOES TO DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER . 13. DATE OF DESPATCH OF ORDER. . 14. DICTATION NOTE ENCLOSED